California’s landmark Assault Weapon Control Act (“AWCA”) faces scrutiny yet again with a new lawsuit filed on May 17, 2017. This challenge to California’s gun laws comes from the California Rifle and Pistol Association, Inc. “CRPA”), a National Rifle Association (“NRA”) affiliate. The lawsuit is the second in a planned series of lawsuits meant to challenge the constitutionality of the state’s decision to extend the reach of the assault weapons ban.

History of the AWCA

A little history is required to understand this constitutional contest. The Roberti-Roos Assault Weapons Control Act of 1989, or the AWCA, generally made it illegal to manufacture, distribute, transport, import, keep for sale, give, or lend any “assault weapon” within California.[1] Possession of an “assault weapon” was punishable as a misdemeanor or felony with a potential prison sentence.[2] Under the original version of the law, an exception is made to the general possession restriction for anyone who lawfully acquired the assault weapon prior to the legislature’s classification of the weapon and its subsequent ban, so long as it was properly registered with the California Department of Justice.

The original legislation listed over fifty-five models of firearms as “assault weapons,” and divided those weapons into categories based on physical features and capability. Over the years, the legislature has expanded the list as new models arrive and to further clarify the law.

In 2016, California introduced Assembly Bill 1135 and Senate Bill 880, which altered the definition once again to include weapons which had been modified by the owner to render otherwise detachable magazines into fixed magazines.[3] Before the newly enacted revisions, gun owners with weapons containing a detachable magazine could modify them to become fixed, effectively bypassing the restriction under the prior version of the AWCA.

Later that year, California Governor Jerry Brown signed the newly expanded law prohibiting the sale of semiautomatic rifles, “large-capacity magazines,” and weapons that are equipped with “bullet buttons” which allow for the quick replacement and removal of ammunition magazines.[4] The new law was also enacted by way of a state ballot initiative, namely Proposition 63, which garnered sixty three percent of the vote.[5]

=One of the most significant aspects of the revised law is that it also bans “large-capacity magazines” that threaten public safety, which bans the mere possession of magazines over ten rounds.[6] In 1999, California enacted Senate Bill 23 which made it a crime to manufacture, import, sell or transfer any “large-capacity magazine” in the state, however, the previous law did not ban possession of them. This meant that California residents who had lawfully acquired the magazines prior to January 1, 2000 could retain those magazines without fear of legal reprisal.[7]

The new law, in contrast, prohibits possession of magazines over ten rounds regardless of the time and manner of their acquisition. The only exceptions are made for possession by military and law enforcement personnel acting within the scope of their employment.[8] Owners of these magazines have until July 1, 2017 to remove them from the state, sell them to a licensed firearms dealer, or surrender them to law enforcement. This date rapidly approaches, and the CRPA and the NRA are actively seeking an injunction—or a legal stop—to enforcement of the new AWCA.

At the time that the revised law was enacted in 2016, the gun lobby, normally highly active in contesting this type of legislation, invested a relatively modest commitment of effort and money in battling Proposition 63. First, the passage of the ballot initiative was redundant, as Governor Jerry Brown had already signed the same legislation into law.[9] Second, the gun lobby seemed to understand that this battle would be more likely won in the courts, rather than in the battleground of public opinion.

CRPA’s Complaint

The CRPA’s effort to win the judicial battle began officially on April 24, 2017, with the filing of a complaint in the United States District Court for the Central District of California Southern Division.[10] The defendant is Xavier Becerra, California’s Attorney General, who enforces the laws passed by the California legislature. Along with the CRPA, the plaintiffs are seven lawful gun owners affected by the changes in the law. For example, plaintiff Steven Rupp is a resident of Orange County, California, who currently owns a “semi-automatic, centerfire rifle with a non-fixed magazine and a pistol grip, flash suppressor, and adjustable stock, making it an ‘assault weapon’ under the latest amendment to the AWCA (Category 4).” [11] He asserts that the AWCA prevents him from transferring, devising (leaving in a will), or selling his rifle in contradiction of his constitutional rights.

True to its promise, the CRPA—with the endorsement of the NRA—filed its second complaint to challenge the AWCA on May 17, 2017 in the United States District Court of the Southern District of California. With six new individual plaintiffs, the group makes the same constitutional infringement arguments made in the earlier complaint.

CRPA’s Legal Arguments

In challenging this legislation, the plaintiffs cite to various constitutional rights which they claim have been impugned.

(A)Second Amendment Argument

The first argument made by the plaintiffs is that the legislation violates the constitutional right to bear arms. They cite to the landmark United States Supreme Court case District of Columbia v. Heller which upheld an American’s Second Amendment right and protected the right to own a handgun in the home for purposes of self-protection.[12] Specifically, the plaintiffs argue that large-capacity magazines are used in firearms that are “typically possessed by law-abiding citizens for lawful purposes[.]”[13] Under the Heller analysis, weapons “typically possessed” by law-abiding citizens are to be afforded Second Amendment protections.

While the defendants have yet to file an answer to the complaint, they will likely contest the applicability of Heller to this case. While Heller did uphold the Second Amendment right to bear arms, the decision is arguably more limited than the plaintiffs would argue. The defendants will counter that Heller considered a statute which banned the possession of a handgun meant for home protection, rather than an assault rifle class firearm or the issue of large-capacity and detachable magazines. Further, the Supreme Court held that an American’s Second Amendment right is not unlimited, just as the First Amendment right to free speech is likewise limited in appropriate circumstances.[14]

(B)Fifth Amendment Argument

The second argument presented by the plaintiffs is that the newly enacted provisions of the AWCA violate the Takings Clause of the Fifth Amendment. The Takings Clausestates: “nor shall private property be taken for public use, without just compensation.”[15] The Takings Clause protects against two kinds of governmental takings: (1) a direct physical taking of the property in question, or (2) a restriction on the use of the property, also known as a “regulatory taking.” When the government does “take” from an individual, it may do so only after “just compensation” to the owner of the property.

The plaintiffs argue that the regulation against assault weapons, and the requirement that large-capacity magazines be surrendered by July of this year constitute a violation of the Fifth Amendment because there is no compensation for it. They further claim that of the many protected property interests, one is “the right to pass on property—to one’s family in particular” after death.[16] As of right now under the expanded legislation, owners of large-capacity magazines must surrender them within the coming months, and even lawful owners of assault weapons would be forced to surrender them to the government upon their death, as the law prohibits any other form of transfer.

The State of California will likely argue that this is not a “taking” as that term is understood under the Fifth Amendment to the Constitution. Not every regulation which controls the use of an individual’s property is a “taking.”[17] The determination of whether a state law affects an individual’s property in violation of the Fifth Amendment is based upon an analysis of whether the restriction on private property “force[es] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”[18] The defendants will likely argue that the AWCA does not rise to the level of a regulatory taking, or an actual taking, and therefore no “just compensation” is required in order to be constitutionally valid.

(C)Due Process Clause Argument

Third, the plaintiffs argue that the newly enacted regulations under the AWCA violate the Due Process Clause of the Constitution. Under that clause, the government may only deprive individuals of their personal property when it furthers a “legitimate governmental objective.”[19] They argue that Section 32310 of the AWCA violates the Due Process Clause because to prohibit “law-abiding citizens from possessing lawfully acquired and commonly owned magazines based solely on their ability to accept more than 10 rounds does not further a ‘legitimate governmental objective’ in a permissible way.”[20]

The defendants here will likely argue that it is the protection of the citizens of California from death or harm which is the “legitimate governmental objective.” The new laws were approved last year in response to the 2015 San Bernardino mass shooting.[21] California has long been known to favor strong gun restrictions based on the idea that guns are, by their nature, inherently dangerous to the public. The State will likely argue that bans on weapons that can fire large amounts of ammunition quickly are especially dangerous to the general public, and that the protection of its citizens is a state’s most important objective.

As the fight continues, more lawsuits are expected and the legal proceedings here will likely take years to come to any conclusion. With the election of Donald Trump as President, and the appointment of Neil Gorsuch to the United States Supreme Court, the NRA and its state affiliates seem ready to take this issue all the way to the nation’s highest court. Whether those legal arguments will ultimately win the day however, remains to be seen.